Rule 1006 Summaries Must Be Non-Argumentative: “Notes” Commentary Crosses the Line (But Plain-Error Relief Requires Prejudice)

Introduction

In United States v. Jacky McComber (4th Cir. Feb. 2, 2026) (unpublished), the Fourth Circuit affirmed a jury’s convictions of Jacky Lynn McComber—InfoTek (“ITK”)’s CEO and interim senior program manager (“SPM”) on an NSA contract—for perjury and submitting false claims (time-billing fraud).

The case arose from ITK’s “Ironbridge” NSA contract, performed largely on-site at the National Security Operations Center due to classified systems. After ITK’s prior SPM departed, McComber billed the NSA 2,603.5 hours over 19 months (often exactly eight hours per day), despite being physically present at the secure facility for only 259 hours. The core issues on appeal were: (1) admission of a voluminous-evidence summary chart; (2) sufficiency of the evidence; (3) a challenged jury instruction about the relevance of on-site presence; (4) claims of prosecutorial misconduct; and (5) loss calculation for sentencing and restitution.

Summary of the Opinion

The court affirmed across the board. Most notably, it held that the Government’s Rule 1006 summary spreadsheet “runs afoul” of Rule 1006 to the extent it included a “NOTES” column that functioned as commentary rather than a neutral condensation of admissible records. However, because the defense did not object at trial, review was for plain error, and the court concluded the admission did not warrant reversal given the overwhelming evidence of fraud and lack of prejudice.

The court also found sufficient evidence for both the False Claims Act and perjury convictions, upheld the jury instructions, rejected prosecutorial-misconduct claims (including a “taxpayer funds” comment deemed, at most, an isolated close call), and affirmed the district court’s loss and restitution determinations (loss: $176,913).

Analysis

Precedents Cited

  • United States v. Walker and United States v. Caldwell (with United States v. Burfoot): provided the baseline that preserved evidentiary issues are reviewed for abuse of discretion and then assessed for harmlessness. Their role here was largely structural—contrasting preserved-error review with the plain-error posture that ultimately controlled.
  • United States v. Cowden, United States v. McCabe, and United States v. Olano: framed the four-part plain-error doctrine. These cases were decisive because the court found (i) no trial objection to the spreadsheet, and (ii) no basis to conclude any Rule 1006 error seriously affected the fairness, integrity, or public reputation of proceedings.
  • United States v. Ortiz Orellana, United States v. Janati, and United States v. Johnson: supplied the key evidentiary principle: Rule 1006 summaries must be objective and cannot smuggle argument or “favorable inferences” as if they were record content. The opinion relied on these cases to condemn the “NOTES” column as commentary. The court also used Ortiz Orellana to situate the 2024 evidence-rule amendments, distinguishing Rule 1006 summaries (substantive evidence) from Rule 107 illustrative aids (not evidence).
  • United States v. Whyte: stated the elements for criminal False Claims Act convictions (false claim + knowledge of material falsity), used to evaluate sufficiency for the nineteen monthly claims.
  • United States v. Watkins and United States v. Dinkins: governed sufficiency review—view evidence in the light most favorable to the Government and uphold if any rational juror could convict.
  • Griffin v. California and United States v. Stockton: informed the burden-shifting/prosecutorial-comment analysis. Griffin prohibits commenting on a defendant’s silence, while Stockton permits criticism of an exculpatory theory (including missing corroboration) where the defendant testified and the Government is targeting plausibility, not shifting burdens.
  • Alleyne v. United States, Francis v. Franklin, and Cnty. Court of Ulster Cnty., N.Y. v. Allen: anchored the presumption of innocence and the limits on inferences/presumptions. They supported the court’s conclusion that the jury instruction did not create an unconstitutional presumption that off-site work was fraudulent.
  • Locket v. Ohio, United States v. Schmitz, Moore v. Mitchell, Demirdjian v. Gipson, United States v. Berroa, and United States v. Dale: reinforced the broader proposition that the prosecution may highlight the defense’s failure to produce available corroboration—so long as it is framed as an argument about what the evidence shows (or does not show), not a demand that the defendant disprove guilt.
  • United States v. Rand, United States v. Chavez, United States v. Powell, United States v. Hale, and United States v. Alerre: supplied standards for prosecutorial misconduct and the six-factor Rand test, plus the plain-error overlay where issues were unpreserved.
  • United States v. Blecker: provided the rule that appeals to jurors’ pecuniary interests as taxpayers are “patently improper.” The opinion distinguished the Government’s “taxpayer funds” remark as, at worst, an isolated statement insufficient for plain-error reversal.
  • United States v. Booker and Walsh v. Vinoskey: set the clear-error standard for loss determinations (reviewing court must have a “definite and firm conviction” of mistake to reverse).
  • United States v. Steele and United States v. Boutcher: supported the district court’s discretion in selecting a reasonable method for calculating restitution and confirmed restitution procedure under § 3664.

Legal Reasoning

  1. Rule 1006: summaries must be neutral, not argumentative.

    The court’s most law-developing discussion concerns the boundary between permissible Rule 1006 condensation of voluminous records and impermissible narrative/argument. By holding the “NOTES” column “runs afoul” of Rule 1006, the court reinforced that a Rule 1006 exhibit must present the contents of admissible records, not a party’s gloss on what those records imply. The opinion ties this to the post-2024 structure: argument and advocacy belong in tools akin to demonstratives—now addressed as “illustrative aids” under Rule 107—not in a Rule 1006 exhibit that goes to the jury as evidence.

    Still, the failure to object was decisive: under plain-error review, the court assumed the Rule 1006 problem but found no reversible prejudice because the remainder of the trial evidence was overwhelming.

  2. Sufficiency: “unaccounted hours” did not defeat proof of falsity or knowledge.

    McComber argued that because no witness could account for her whereabouts for every hour of every day, the Government could not prove she did not work the eight hours billed. The court rejected this as inconsistent with: (i) testimony that “very little” Ironbridge work could be done off-site; (ii) the SPM role being “quarter-time”; (iii) evidence she was rarely in contact with relevant personnel; and (iv) concrete examples of travel, social events, and other business conflicting with the claimed Ironbridge hours. Under Watkins/Dinkins, the jury could rationally infer the timesheets were inflated and that she knew it.

  3. Perjury: false denials and claimed accuracy of timekeeping.

    Applying 18 U.S.C. § 1001(a), the court found sufficient evidence that McComber knowingly made materially false statements during the NSA interview. The denial of false claims tracked the broader fraud proof. The “accurate accounting” statement was “closer,” but the court relied on evidence of late timesheet entry, discarded notes, and the practical implausibility of the billed hours given the project’s on-site nature and her other activities.

  4. Jury instruction: relevance of on-site presence did not shift the burden.

    The challenged instruction explicitly stated the Government did not contend off-site work was per se illegal and explained only that on-site presence was relevant because some work was classified. Coupled with repeated burden-of-proof instructions, the court held there was no plain error and no unconstitutional presumption.

  5. Prosecutorial misconduct: permissible plausibility arguments; “taxpayer funds” remark not reversible on plain error.

    Using Rand, the court concluded the prosecutor’s references to missing corroboration were permissible attacks on the defense theory, consistent with Stockton and related cases, and were cured by repeated burden instructions. On the “taxpayer funds” remark, the court acknowledged Blecker’s prohibition and called it a “closer call,” but deemed it isolated, tied to materiality, and not prejudicial enough for plain-error reversal.

  6. Loss and restitution: reasonable estimate, discretion, and clear-error review.

    The district court credited McComber with 15 hours/week of legitimate work and calculated loss at $176,913—below the Government’s figure. Given estimation difficulty and the court’s reasoned approach, the Fourth Circuit found no clear error and upheld both restitution and the Guidelines loss enhancement.

Impact

Although unpublished and nonbinding in the Fourth Circuit, the decision is practically important in two ways:

  • Trial practice under Rules 1006 and 107: The opinion signals heightened scrutiny of “hybrid” summaries that combine data with narrative “notes,” labels, color-coded insinuations, or other advocacy. Litigants should treat interpretive annotations as demonstratives/illustrative aids (Rule 107) rather than as Rule 1006 evidence, or risk exclusion—especially if the issue is preserved.
  • Plain-error realities: Even where an evidentiary exhibit is acknowledged to violate the governing rule, reversal is unlikely without a timely objection and a persuasive showing that the error affected the outcome or undermined the proceeding’s integrity.

Complex Concepts Simplified

  • FFP-LOE (Firm-Fixed-Price Level-of-Effort) contract: The buyer pays a fixed price for a specified number of labor hours at set rates. The contractor certifies the hours billed were actually worked on contract tasks; billing hours not worked is the core fraud theory here.
  • Rule 1006 summary: A chart/summary that can be admitted as evidence to prove the contents of voluminous admissible records. It must be neutral—essentially a compression of information, not an argument.
  • Rule 107 illustrative aid (post-2024 amendment): A demonstrative tool to help the jury understand evidence; it is not itself evidence and is more tightly controlled (including limits on use in deliberations).
  • Plain error: A demanding appellate standard applied when there was no timely objection. The appellant must show an obvious error that affected substantial rights and seriously undermined the proceeding’s fairness/integrity.
  • Materiality (fraud context): Whether the falsehood mattered—i.e., had a natural tendency to influence, or was capable of influencing, the Government’s payment decision.
  • Loss vs. restitution: “Loss” drives Guidelines enhancements; restitution repays victims. Both can rely on reasonable estimates when exact calculation is impracticable, but must be grounded in evidence.

Conclusion

United States v. Jacky McComber reinforces a key evidentiary boundary: a Rule 1006 summary admitted as evidence must summarize records, not advocate. Commentary-laden “notes” and inference-driving presentation features risk violating Rule 1006—an issue increasingly salient after the 2024 creation of Rule 107 for illustrative aids. Yet the case also underscores the appellate consequences of failing to object: even a recognized Rule 1006 defect will not yield reversal absent plain-error prejudice, especially where the trial record contains overwhelming proof of guilt.